Direito econômico: a repressão à prática do delito de insider trading e a inefetividade da tutela penal

• Autor(a) principal: Cadorin, Tatiane Ghisi
• Data de Publicação: 2020
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Universitário da Ânima (RUNA)
• Texto Completo: https://repositorio.animaeducacao.com.br/handle/ANIMA/7641
• topic: Direito Penal; Economia; Mercado de Capitais; Insider Trading

Currently, there is a consensus that the State should interfere in the economy, distributing wealth and limiting the excesses of the private sector. Based on this view, studies on the behavior of large companies and their relationship with the economy discovered the existence of several crimes, which were called “white collar crimes”. In this sense, economic criminal law is a reaction to the difficulty in punishing these infractions. The National Financial System, of which these companies are part, is a sensitive field and deserves criminal protection. Within this system, we can mention an important niche, the capital market, where negotiations between publicly traded companies, such as public limited companies, and the individuals who have savings to invest, the savers, take place. In order for negotiations between companies and investors to take place in an organized manner, the legislator created the CVM autarchy, a body that watches over the performance of the stock and over-the-counter markets, famous trading environments. In these environments, publicly traded companies sell securities, especially shares, debentures and subscription bonuses. The public limited company participating in the market must have specific internal bodies, such as the board of directors, the executive board, the fiscal council and the general meeting. These bodies must submit to various duties, such as reporting and loyalty, whose scope is to ensure the secrecy of relevant facts and acts, so that they are not used in the fraud of financial transactions. If company administrators, or people related to them, use their knowledge maliciously to gain an advantage, through the use of information considered relevant and that influences the purchase of shares, they may be framed in the crime of insider trading. The practice has provisions in article 155 of Law 6.404/1976, as well as, criminal prohibition in article 27-D of Law 6.385/1976, the offender being able to be penalized in the administrative, civil and penal spheres, the latter most recent in Brazil. Despite the prediction of the criminal type, less than ten cases reached the Brazilian judiciary in almost twenty years of legislation, and only one case had a final sentence, reinforcing the reflection that there is no effective criminal repression in Brazil for the crime of using information insider trading